Published January 21, 2014 by

CBP Can’t Hide Behind Ministerial Shield… sometimes

In the Corning Gilbert Inc. v. U.S., importer asked the Court of International Trade for an opinion about Customs and Border Protection (CBP) role in enforcing decisions of other agencies.  The specific issue concerned general exclusion order issued by International Trade Commission (ITC) in the patent infringement investigation for coaxial cable connectors.  Exercising ITC’s authority under 19 U.S.C. § 337(d)(2)(a), the Commission directed CBP to exclude all unlicensed “coaxial cable connectors that infringe claim 1 and/or claim 2 of U.S. Patent 6,558,194.”  Id.  Since the patent in question has only two claims, the ITC’s decision essentially concerned the whole patent.  Now here is the interesting part:  when deciding whether or not to exclude the merchandise, can CBP rely on interpretations of the ITC, or should CBP make its own inquiry?  In Corning Gilbert, CBP thought that reliance on ITC’s interpretation would suffice.  The Court, however, disagreed and requested CBP to exercise its own discretion: “Customs may have to go beyond the mechanical application of the ITC’s Section 337. It may have to look at evidence and analyze whether the importer, particularly a non-party such as Corning Gilbert, has established non-infringement.” Id. This holding is significant in light of CBP’s peculiar role as…

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Product Regulation U.S. Federal Agencies U.S. Federal Courts

Antidumping Computers & Electronic Products Court of International Trade Customs and Border Protection Department of Commerce Intellectual Property Rights International Trade Administration International Trade Commission Protest

Published March 6, 2013 by

CBP’s Post Entry Procedural Due Process Disclosure Manual

Fifth Amendment of the U.S. Constitution prohibits federal government, which includes Customs and Border Protection (CBP), from depriving a person of property without due process of law.  Fifth Amendment requires CBP to follow adequate procedures before a person is deprived of property.  LawCustoms editor has not investigated as to whether money = property under the Fifth Amendment, but if it did, then CBP’s Protest/Petition Processing Handbook  would be probative of CBP’s compliance with Due Process requirements. The handbook was issued by CBP’s Headquarters (HQ) for field offices or ports throughout the United States.  Accordingly, it is a command by HQ to follow enumerated procedures at the post entry stage.  For importers, customs brokers, and attorneys, the Handbook can be a treasure trove because the deviation from CBP’s Handbook to the detriment of the complainant, can be a cause for overturning CBP’s decision.  For example, the deviation from the Handbook, can be used as a tool to file the request to void the denial of protest under 19 U.S.C. § 1515(d) (2011). Besides official administrative actions, the Handbook can also be helpful in conversations with CBP officials.  CBP, like customs brokerage community, is transforming to become a more centralized and efficient…

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U.S. Federal Agencies Useful Links

Customs and Border Protection Drawback Post Entry Amendment Protest

Published February 7, 2012 by

Lawfully Avoiding Duties & Fees For Your Medical Products: Nairobi Protocol Application

Demographic map of the United States is tilting toward a higher age median.  The tilt is accompanied by the increased demand for medical appliances that assist many aging Americans in their daily activities.  The appliances range from canes and walkers to bath seats and commodes.  Much like other products, many medical appliances are made outside of the United State, and therefore must be imported.  Medical imports may be subject to duties and almost always assessed a Merchandise Processing Fee, which is currently at 0.3464% or $495 per Customs Entry, whichever is lower.  Naturally, importers do not wish to pay any duties or fees for their medical products.  One way of avoiding such payments would be to invoke The Nairobi Protocol provisions.  If The Nairobi Protocol applies to the importer’s product, that importer does not pay any duties or merchandise processing fees for the applicable product.  See e.g.  N044079 (2008) (“This merchandise is already duty free, but if you elect to claim the secondary classification in Chapter 98 of 9817.00.96 and meet the entry requirements, no merchandise processing fee will apply to those importations . . . . .”). Historical Background In 1950, The Agreement on Importation of Educational, scientific and…

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Trade Agreements U.S. Federal Agencies

Customs and Border Protection Department of Commerce Harmonized Tariff Schedule Classification HTS Heading 9817 Import Administration International Trade Administration Post Entry Amendment Protest The Nairobi Protocol United Nations

Published June 23, 2008 by

Application for Further Review (AFR) Criteria under 19 CFR §174.24 (b)

The application for further review has been incorporated into the latest version of the protest form (CBP 19) Section V. The criteria for review is set forth under 19 CFR 174.24 / 174.25. Pursuant to §174.24 (and corresponding Block 16 of the protest form CBP 19) protesting party must provide justification. Parties can make the claim pursuant to 19 CFR §174.24 (b); Is alleged to involve questions of law or fact which have not been ruled upon by the Commissioner of Customs or his designee or by the Customs courts. Commonly made mistake is to either fill out the form (i.e. simply mark the check boxes) without providing any justification narrative. Or providing a general narrative somewhere along this lines: “Application for further review is made because there are factual or legal issues that have not been ruled on by this port or the Commissioner of Customs.” Most of the time it will work. However, knowledgeable CBP officials will deny such AFR (on the grounds of §174.25(b)(3)) citing that the justification does not provide specific information as to which question of law or fact has not been ruled on. They also may cite that it does not meet criteria of…

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U.S. Federal Agencies

Customs and Border Protection Protest

Published May 21, 2008 by

Recoup of CBP presentation at JFK (05/21/2008)

Common mistakes / misunderstandings The 180 day period is counted without regard to Saturdays, Sundays, or holidays. Day 1 is the day after liquidation. If the last day for filing a protest or other administrative claim falls on Saturday, Sunday, holiday, snow day…etc, then the protest may be filed on the first succeeding day the CBP location is open. This practice is in line with Federal Rules of Civil Procedure under Treasury Decision 53961 (1), dated November 25, 1955. Declaration must be filed with each protest: To the best of my knowledge, the entry (entries) is (are) not subject of drawback, nor the entry (entries) has (have) been referenced on a certificate of delivery or certificate of manufacture and delivery so as to enable a party to make such entry (entries) the subject of drawback. Amendment to already filed protest should be marked at the top “AMENDMENT TO PROTEST (PROTEST #) Application for Further Review (AFR) The filing of AFR on a protest does not preclude a preliminary examination by the local port. If preliminary review results in a full allowance of the protest, then the protest will be decided locally, and the AFR becomes moot and will not be…

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U.S. Federal Agencies

Customs and Border Protection Protest

Published April 23, 2007 by

Revised Entry Summary (7501) Not Required for Protest

I always protested entries without revised 7501. However, CBP at port of Savannah GA require revised entry summary to be included with the entry packet. My argument for not including revised 7501 was that since protests are codified in 19 CFR 174.13 where no provision for revised entry summary is mentioned, no revision is required. 1703 is different. Recently I got a call from Newark entry specialist requesting the same thing. They, however, have teams that require and that don’t. All other ports don’t require revisions to the best of my knowledge.

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U.S. Federal Agencies

Customs and Border Protection Protest